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People v. Olivieri

October 4, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY M. OLIVIERI, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County No. 99CF522 Honorable Claudia S. Anderson, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

Defendant Anthony M. Olivieri appeals his jury conviction for three counts of aggravated criminal sexual assault (720 ILCS 5/ 12-14(a)(2) through (a)(4) (West 1998)) and his sentence of 3 consecutive 10-year prison terms. We affirm.

I. BACKGROUND

Defendant was charged by information with five counts. Counts I and II were counts for home invasion (720 ILCS 5/12-11(a) (West 1998)). Counts III, IV, and V alleged three separate statutory violations for aggravated criminal sexual assault. Count III alleged that defendant caused bodily harm to his victim (720 ILCS 5/12-14(a)(2) (West 1998)); count IV alleged that defendant threatened or endangered the life of his victim (720 ILCS 5/12-14(a)(3) (West 1998)); and count V alleged that defendant committed the sexual assault in the commission of another felony, home invasion (720 ILCS 5/12-14(a)(4) (West 1998)).

At trial, defendant admitted that in the early morning hours of November 27, 1999, he forced his way into the victim's home, battered her rather severely, and then committed at least four acts of sexual penetration, including oral, vaginal, and anal penetrations. Defendant claimed that the sex, which came after the beating, was consensual. The victim and defendant had been in a long-term sexual relationship, and defendant had lived with the victim up until a few days before the assault. The victim testified that the sex was not consensual, defendant had threatened to kill her, and she feared for her life.

The jury found defendant guilty on all three aggravated criminal sexual assault counts, and at the sentencing phase the State filed a sentencing memorandum recommending the trial court enter verdicts on each of the three aggravated sexual assault counts based upon three different acts of penetration. The State also recommended that the two counts of home invasion merge because only one entry resulted in injury to the victim. Defendant argued that the three aggravated sexual assault counts should be merged because the counts were charged in the alternative and, therefore, the charging instrument did not afford him notice that the State was prosecuting each act of penetration as a separate offense.

The trial court merged the remaining count of home invasion into count V, aggravated sexual assault during a home invasion, because home invasion was an included offense in that charge. The trial court sentenced defendant to 10 years for each count of aggravated criminal sexual assault, to be served consecutively. Defendant's posttrial motions were denied. Defendant now appeals.

II. ANALYSIS

Defendant raises two issues on appeal: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt, and (2) he was denied a fair trial because he was charged for one offense under three different theories, yet was sentenced for three separate offenses. We address each issue in turn.

A. Standard of Review

When reviewing the sufficiency of the evidence on appeal, the test on review is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690, 697 (1991). Where no factual or credibility dispute is involved and the question on appeal involves only the trial court's application of the law to the undisputed facts, the appellate court's standard of review is de novo. People v. Rockey, 322 Ill. App. 3d 832, 836, 752 N.E.2d 576, 580 (2001).

B. Sufficiency of the Evidence

Defendant first argues that the evidence against him was insufficient to support a conviction for aggravated criminal sexual assault because the victim's testimony was not corroborated. The requirement that a sex-offense victim's testimony be corroborated was specifically abandoned by the Illinois Supreme Court a decade ago in Schott, 145 Ill. 2d at 202, 582 N.E.2d at 696-97. Defendant's argument is without merit.

In sex-offense cases, as in all criminal cases, when the issue is the sufficiency of the evidence, the test on review is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203, 582 N.E.2d at 697. The victim's testimony, if believed by the jury, proved the elements of each count of aggravated criminal sexual assault beyond a reasonable doubt. We will not substitute our judgment of the credibility of the witnesses for that of the jury. People v. Brooks, 187 Ill. 2d 91, 132, 718 N.E.2d 88, 111 (1999).

C. Sufficiency of Notice That the State Intended To Treat Each Act of Penetration as a Separate Offense

Defendant next argues that he was deprived of a fair trial because the charging instrument charged him in the alternative and did not provide notice that the State was proceeding on three separate acts that would support three separate convictions. We disagree.

As defendant points out, the State's Attorney has exclusive discretion in the initiation and management of criminal prosecutions, including the right to choose what charges to bring (People v. Novak, 163 Ill. 2d 93, 113, 643 N.E.2d 762, 772-73 (1994)) and in what manner the charges can be brought. Further, prosecutorial intent, as indicated in the wording of the charging instrument, has been regarded as a significant factor for determining whether defendant's conduct should be treated as a single act. People v. Crum, 183 Ill. App. 3d 473, 490, 539 N.E.2d 196, 207 (1989). In the case sub judice, the State clearly charged defendant with three separate counts of aggravated criminal sexual assault, and defendant was on notice of his need to defend against all three counts. Moreover, and contrary to defendant's assertion, defendant was not charged alternatively with three counts of aggravated criminal sexual assault.

The record reflects defendant was clearly charged by information with three separate sexual assaults: (1) by threatening the victim, (2) by causing bodily harm, and (3) by acting during a home invasion:

"COUNT III - AGGRAVATED CRIMINAL SEXUAL ASSAULT, in that he, in committing a Criminal Sexual Assault[,] caused bodily harm to [R.Y.], in violation ...


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